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TMI Blog2005 (9) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the application under section 543(1) of the Companies Act, 1956 ("the Act") being time-barred, was overruled. The brief facts, relevant for present controversy, are that M/s. Swadeshi Polytex Ltd., Ghaziabad, moved an application for winding up of a company M/s. Jaipur Spinning and Weaving Mills Ltd. ("company"), which was wound up vide order dated December 2, 1983. The official liquidator attached to this court was appointed as liquidator of the company. The official liquidator filed Application No. 15 of 1989 on December 1,1989, under section 543(1) of the Act for seeking direction for inquiry to be made and for passing appropriate orders against the non-applicants (appellant) to compensate the company in liquidation for loss, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en enacted by the Legislature under the Act, itself, and has reiterated the very submissions made before the company judge. Shri G.K. Garg, counsel for the official liquidator contended that by virtue of section 458A of the Act, in computing the period of limitation, the period from the date of commencement of the winding up of the company to the date of winding up order and a period of one year immediately following the date of winding up order have to be excluded in term of section 458A and the learned company judge has not committed any error in overruling a preliminary objection, and has placed reliance upon decision in Ashoka Auto and General Industries P. Ltd. v. Inder Mohan Puri [2005] 124 Comp. Cas. 422 (Delhi) in support of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads as under: "(2) An application under sub-section (1) shall be made within five years from the date of order for winding up or of the first appointment of the liquidator in the winding up, or of the misapplication, retaining, misfeasance or breach of trust, as the case may be; whichever is longer." Section 543 confers power upon the Tribunal to assess damages against delinquent directors, etc ., on the application of the official liquidator, or the liquidator or of any creditor or contributory, made within the time specified in sub-section (2) and to examine into the conduct of the person, director, manager, liquidator or officer aforesaid compel him to repay or restore the money or property or any part thereof or to contribute such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the date on which the application for winding up is made, could be filed by the official liquidator by taking the benefit of section 458A of the Companies Act and getting the period of four years to be excluded from the period of three years, as provided under article 137 of the limitation Act...But by no stretch of imagination, the said provisions contained in section 458A can be construed to mean that even a barred debt or a claim which was not enforceable on the date of the winding up, would stand revived, once a winding up application is filed and order is made by virtue of section 458A'of the Companies Act." It is true that section 543(2) of the Act provides limitation of five years from the date of winding up order or of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Delhi High Court in Ashoka Auto and General Industries P. Ltd. v. Inder Mohan Puri [2005] 124 Comp. Cas. 422 that the claim by the official liquidator under section 543 being a claim by the company, even if section 543 states that the five-year period is to commence from the date of winding up order, section 458A of the Act would be applicable and the benefit of one additional year as provided in the said provision would be available for proceedings under section 543 of the Act Hence we find no error in-the order dated April 19,1999, of the company judge in overruling the preliminary objection raised by the appellant. Consequently, this special appeal fails and is hereby dismissed with no order as to costs. - - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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